Trafficking in influence, Consulta saves reform but lobbying law needed

No profile of constitutional criticality in the recent reform of the crime of trafficking of influence. The Constitutional Court, in a ruling filed yesterday, no. 185, written by Francesco Viganò, considered unfounded the question raised by the Court of Rome, which had accepted the request made by the public prosecutor's office. The ruling confirms the line already affirmed in some respects a few months ago on the other intervention in substantive criminal law contained in the Nordio law, in force since the summer of 2024, the abolition of abuse of office.

With yesterday's ruling, but the issue had also arisen for abuse of office, the Court on the one hand held that the violation of international obligations to criminalise conduct may give rise to a violation of Article 117 of the Constitution, which requires the legislator to respect international obligations. On the other hand, if it is true that the Strasbourg Convention gives rise, for the legislature, to an obligation to provide for the offence of trafficking in unlawful influence in the Italian penal system, nevertheless the concept of influence improper used by the Convention has, the Constitutional Court emphasised, vague contours and a rate of elasticity such as to make it necessary for it to be specified by national law.

The judgement admits that, after the reform, the 'new' traffic in influence 'excludes, in particular, all onerous agreements between private individuals and mediators having as their object the commitment of the latter to obtain from public agents - by means other than bribery - conduct not only favourable to the private parties, but also contrary to the official duties of the public agents themselves, where they do not constitute another offence'. There is also nocriminal sanction in the case where the mediator is himself a public agent, when his intervention with another public agent, with the aim of obtaining, by means other than bribery, a measure favourable to the private individual, is not in itself connected with the exercise of his function or powers.

Despite these obvious criticisms, however, the Court considers that the intervention of 2024 is nevertheless within the margin of discretion that the Convention has left to the various national legislatures. Rather, in conclusion, the Court invites the legislature to introducean organic regulation of lobbying activities, "necessary, in order to clearly define the conduct of unlawful influence on public officials and to provide for sanctions for failure to comply with the relevant prescriptions; thus guaranteeing transparency to the practices of interlocution with the institutions".